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Petitioner: Muhammad Bashir and another VS Respondent: Sain Khan and 2 others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Chaudhary Muhammad Ibrahim Zia, Raja Saeed Akram Khan Title: Muhammad Bashir and another vs Sain Khan and 2 others Case No.: Criminal Appeals No. 1 and 31 of 2010 Date of Judgment:2014-04-16 Reported As: 2014 PSC (CH.) 537 Result: Criminal appeal dismissed
JUDGMENT
JUDGMENT CH. MUHAMMAD IBRAHIM ZIA, J. --- These appeals have arisen out of the consolidated judgment of the Shariat Court dated 6.1.2010, whereby Criminal Appeal No. 18,2002 filed by convict-appellant San Khan, has been partly accepted while converting the death sentence into life imprisonment; whereas appeal No. 34/2002 filed by the complainant as well as Reference Na. 17/2002 filed by the Trial Court have been refused. 2. The brief facts forming the background of these appeals are that the- complainant, Muhammad Bashir filed a written report at Police Station Dadyai on 6.3.1996 at 5:30 p.m. According to the averments made in the report, the complainants brother, Haji Muhammad Farid son of Allah Ditta alongwith the labours, namely Nisar son of Iota and Abdul Ghani son of Fazal Dad, case Jat, r/o Tharah, mozia Dagar, after unloading the goods, was coming back to home on his personal tractor from Tharah. When he crossed the pipe bridge on the road, Sain Khan, armed with 222 rifle, Muhammad Sajawal and Muhammad Suleman, armed with 12 bored rifles each, who were ambushed themselves in the way, with the intention to kill stopped the tractor and raised 'lalkara' upon brother, Haji Muhammad Farid that: 'you will not be let alive today'. Upon this, the brother, Muhammad Farid, alighted from the tractor and started running towards his home. Sain Khan son of Muhammad Hussain who was armed with 222 rifle, aimed at brother, Muhammad Farid and fired. The fire hit at the brother's head near to right ear due to which he fell down and died on the spot. The occurrence was seen by the labours sitting in the trolley and Azam son of Muhammad Hussain, who was also present nearby. Muhammad Azam, informed the complainant Muhammad Bashir, about the incident. On this, the complainant went on the spot and found the dead-body of
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brother Muhammad Farid soaked with blood. The accused party, after committing the murder, ran away from the place of occurrence. The motive behind the occurrence is stated to bean old enmity and litigation between the parties. 3. On this report, a case for commission of offences, under Sections 302, Qisas & Diyyat and 34, Azad Penal Code, was registered against the accused at Police Station, Dadyal. The dead-body of Haji Muhammad Farid, deceased, was taken to Dadyal Hospital for post-mortem. The police started investigation, During investigation, Section 13, Arms Act, 1965, was also added. 4. After completion of necessary investigation, the police submitted challan before the District Criminal Court, Mirpur for the alleged offences. The accused were examined under Section 242, Cr.P.C. On 6.7.1996, who pleaded not guilty and claimed trial. They were cross-examined under Section 342, Cr.P.C. But once again they pleaded not guilty. 5. The statements of witnesses were also recorded. The evidence to the extent of the prosecution witnesses, Muhammad Sabir, Mazhar Hussain, Kamal Hussain, Muni; Hussain, Chemical Examiner, and Director Forensic Science Laboratory Lahore, was closed. 6. After conclusion of the trial, the District Court of Criminal Jurisdiction, Mirpur, found the accused, Sain Khan guilty for the commission of the murder of Haji Muhammad Farid. Sain Khan, accused- appellant was convicted and awarded the death sentence as "Qisas", for commission of the offence under Section 302, A.P.C., vide judgment dated 23.4.2002, whereas the allegation being not proved against other accused Muhammad Suleman and Muhammad Sajawal, they were extended the benefit of doubt, hence, acquitted of the alleged charges. 7. Both the parties challenged the legality and correctness of the judgment of the District Court of Criminal Jurisdiction, Mirpur through separate appeals in the Shariat Court. A reference was also filed by the District Criminal Court for confirmation of the sentence of "Qisas". The convict-appellant prayed for his acquittal by setting aside the judgment of District Criminal Court, whereas, the complainant party challenged the judgment of Trial Court to the extent of acquittal of the accused-respondents, Muhammad Suleman and Sajawal. 8. The learned Shariat Court, after necessary proceedings, vide impugned judgment dated 6.1.2010, partly accepted the appeal filed by Sain Khan, convict-appellant and modified the judgment of the Trial Court while converting the death sentence into life imprisonment. However, the appeal filed by complainant-appellant, was rejected while concurring with the findings recorded by the Trial Court to the extent of acquittal of accused, Muhammad Sajawal and Muhammad Suleman. The reference submitted by the Trial Court for confirmation of sentence of death as "Qisas" awarded to Sain Khan was also answered negative by the Shariat Court. 9. Both the parties have now approached this Court through separate appeals. The complainant- appellants prayed for setting aside the judgments of the Courts below to the extent of the acquittal of Muhammad Sajawal and Muhammad Suleman, accused, whereas to the extent of Sain Khan, convict-appellant, they have prayed for setting aside the judgment of the Shariat Court and restoration of the judgment of Trial Court dated 23.4.2002. The convict-appellant, Sain Khan in his appeal has prayed for setting aside the judgments of both the Courts below and requested for his acquittal on numerous grounds.
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10. Raja Inamullah Khan, Advocate, the learned counsel for the convict-appellant, argued the case at some length and also attempted to convince the Court for reappraisal and re-appreciation of evidence. He also submitted that there are major dents in the prosecution case. The depositions made by the prosecution witnesses are also mutually inconsistent. Moreover, the major improvements have been made in the statements before the Court as compared to the statements made before the Investigating Officer. One of the eye-witnesses, Abdul Ghani, who may be an impartial witness, has been discarded. The circumstantial evidence, oral evidence and site plan, when judged in the light of the depositions made by the witnesses, creates serious doubts, therefore, the whole prosecution story becomes doubtful. The prosecution failed to bring on record any sort of evidence regarding the preplanning and conspiracy. The prosecution has produced only closely related witnesses on the basis of the statements of such witnesses imposition of conviction is against the principles of administration of justice. As the same evidence to the extent of some accused have been disbelieved and they have been acquitted whereas such evidence has wrongly been believed against the convict, therefore, the rule of propriety demands that such evidence cannot be made basis for conviction of the convict-appellant. The prosecution has totally failed to prove the recovery of the crime weapons as the recovery witnesses have not been produced. A deep scrutiny of the evidence will lead to the conclusion that neither the complainant nor the other so-called eye-witnesses were present at the time of occurrence. The purgation of witnesses has not been conducted according to law. Thus, these are the material facts which demands acquittal of the accused. As an alternate, the learned counsel submitted that if at all the Court reaches the conclusion that it is not a case of acquittal, then in the given circumstances, it is clean case of lesser punishment and the punishment undergone will meet the required ends of justice. He also submitted that the cross appeal filed by the complainant-party is totally against law which has no substance and is liable to be dismissed. In support of his version, he has placed reliance upon the cases reported as Muhammad Khurshid Khan v. Muhammad Basharat and another [2007 SCR 1], Muhammad Yaqoob and 4 others v. The State & another [2009 SCR 104], Khurram Malik & others v. The State and others [PLD 2006 SC 354], Ali Hussain & another vs. Mukhtar and 2 others [1983 SCM R 806] and Liaquat Hussain & another vs. Ulfat Khan and others [2007 SCR 39]. 11. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant-appellants while controverting the arguments of the learned counsel for the convict-appellant submitted that there are concurrently recorded findings against the convict-appellant. Unless, there is any major departure from law, reappraisal or re-appreciation of evidence is not the job of this Court at this stage. He submitted that this case is of direct evidence and the broad daylight. Neither there is any doubt regarding identification of accused nor any contradiction is found in the statements of eye- witnesses. The prosecution has succeeded to establish its case beyond any shadow of doubt. He further submitted that the presence of "the accused at the place of occurrence is also an admitted fact. In this regard, he drew the attention of the Court towards the findings recorded by the Shariat Court, available at page 25 of the impugned judgment, wherein after reappraisal of the evidence, it has been held that the trend of cross-examination, especially putting suggestions to the prosecution witnesses by the defence, makes the time, place of occurrence and presence of deceased and accused party as an admitted fact. Thus, there remains no doubt regarding place of occurrence, presence of accused etc. He submitted that the acquitted. Accused, in the light of the peculiar facts of the case and the evidence brought on record, deserve for conviction according to celebrated principle of statutory law. According to the prosecution story, the provisions of Section 34 are fully attracted against all the accused and the case has been fully
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proved. While referring to the case-law the learned counsel submitted that the principle of vicarious liability has been discussed and elaborated in the case reported as Shafoo & others v. The State [1968 SCM R 719]. This case-law fully applies to this case. He also referred to the cases reported as Shabbir Ahmed v. The State & another, [1997 SCR 206] and [PLD 2000 SC 354]. He argued that in the light of peculiar facts, the punishment awarded to Sain Khan by the Trial Court be restored and the co-accused may also be punished for the alleged offences while attracting the provisions of Section 34, A.P.C. 12 We have paid our utmost attention to the respective arguments of the learned counsel for the parties and also examined the record especially, the judgments of the Trial Court as well as the learned Shariat Court. A detailed examination of the judgments of Courts below reveals that concurrent findings of the facts have been recorded against the convict after due appreciation of the material brought on record. The learned counsel for the convict-appellant has pointed out some minor flaws, which according to his estimation, amount to falsify the prosecution story, hence, the prosecution failed to prove its case beyond shadow of doubt. In the light of peculiar facts of this case, all the objections raised on behalf of defence, the contradictions among the statements of witnesses or variation among the ocular, medical and circumstantial evidence, proof of the recovery of crime weapon, relationship of the prosecution witnesses and the discrepancies in the statements of eye-witnesses recorded under Section 161, Cr.P.C. Etc. Have been considered in the light of the material brought on record. When these points judged upon the touch stone of the principle of administration of criminal justice, we found that none of these is of such importance which has legally prejudiced the legal rights of the convict-appellant. In the light of the peculiar facts and circumstances of this case, none of these discrepancies is fatal for the prosecution and we do not need to record separate findings on each as in this regard this Court has already enunciated the principle of law in relation to such-like points in an authoritative judgment in the case reported as Abdul Rashid & 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240], while considering such-like objections, as not of worth consideration. It will be useful to reproduce here the relevant portion of the judgment as under:--- "7. The contention on behalf of the accused-respondents that inquest report and injury-sheet were prepared by Zulqarnain and his non-production is fatal to the prosecution case is not tenable for the simple reason that the preparation of inquest report etc., are hardly material if the case is otherwise established by the prosecution. There may be some importance of inquest and injury- sheet in certain cases where cause of death is doubtful but in the instant case, there is no such dispute. Besides the FIR, in the aforesaid inquest report and injury sheet, the fatal injury is alleged to have been caused by twelve-bore gun. Therefore, the non--production of Zulqarnain, ASI, as a prosecution witness does not detract from the truth of the prosecution story or renders the same as doubtful. 8. The next question which needs resolution is as to whether the motive in the instant case has not been proved merely because the incidents of 22.6.1985 and 23.6.1985 were not put to the accused persons while they were examined under Section 342, Cr.P.C. It may be observed that if a piece of evidence is not put to an accused person in his examination under Section 342, Cr.P.C., either the case may be remanded for re-examination of the accused person under Section 342, Cr.P.C., or the same may be excluded from consideration. We are of the opinion that instead of remanding the case, we exclude from consideration the evidence in support of the fact that the accused- respondents tried to pickup quarrel with the deceased on the aforesaid two dates. But that does not imply that there was no political rivalry which actuated the incident. The aforesaid two incidents were the result of political rivalry which is alleged as motive in the case and were not motive itself. Thus, the Shariat Court was not justified to hold that as the aforesaid two incidents
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were not put to the accused-respondents under Section 342, Cr.P.C., there was no motive for the accused persons to attack the deceased. It may also be pointed out that this is a well-settled principle of law that if a case is primarily based on ocular evidence, it is not necessary to prove motive. A reference may be made to the following authorities:--- In a case reported as Muhammad Ramzan v. The State [NLR 1992 Cr.L.J. 82], it was held that mere absence of motive was no ground to doubt the truth of prosecution case. In a case reported as State/Government of Sindh v. Sobharo [NLR 1993 SCJ 385], it was observed that absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. In a case reported as Shabbir Ahmed v. The State [1997 SCR 206], it was held that motive was not a sine qua non for proving the offence of murder. 9. The finding of the Shariat Court that there are contradictions between the medical evidence and the eye-witnesses is also not correct. According to the finding of Trial Court, the fire which caused death of Fazal-ur-Rehman was fired from a close range. The site plan shows that at the time of fire, the distance between the assailant and the deceased was eleven feet. According to medical jurisprudence, the burning of the clothes and blackening may be present if the gun is fired from a distance about three feet or less. After subtracting the length of barrel of the gun and its butt, which may be about 5/6 feet, the remaining distance between the muzzle of the gun is more or less remains only about 5/6 feet; the distance of 2/3 feet is negligible as the same may be due to wrong perception of the witnesses. Thus, there is no material contradiction in the statements of eyewitnesses and medical evidence. It may be observed that it is not possible for the witness in such a case to give the precise distance; there is always a possibility of error of few feet or yards. The observation of the Shariat Court that according to the statements of eyewitnesses, the distance between the assailant and deceased was about five to six yards is concerned, it may be observed that the witnesses gave statements in the Court after more than three years of the incident. Therefore, the aforesaid statements at the trial would not nullify the distance between the assailant and victim of offence at the time of firing which is mentioned in the site plan. Even otherwise, if ocular evidence is found trustworthy, the same cannot be rejected merely because there was some variation between the prosecution witnesses and the medical evidence on the point of distance between the assailant and the victim at the time of inflicting the injury. 10. The Shariat Court has also held that the recovery memo. Ex.PL, which was signed by Naseer Ahmed and lnayat Ali was not proved by the witnesses. It may be observed that the aforesaid two witnesses have clearly stated that the gun, Ex.P/6, was recovered at the instance of Abdul Ghaffar, accused-respondent. They have proved recovery memo. Ex.PE taken it to be the recovery memo. Of the gun which is Ex.PL due to the inadvertence of prosecutor who conducted the trial. Apparently, the mistake was caused as a result of oversight of the prosecutor and, thus, it cannot be said that the recovery of the gun from Abdul Ghaffar, accused respondent, has not been proved, especially so when Ex. PE is a recovery memo. Of the license of the gun which is in the name of the accused- respondent. It follows from what has been stated above that the Shariat Court was not justified in holding that the gun in question has not been proved to have been recovered from Abdul Ghaffar, accused-respondent. 11. The reasoning given by the Shariat Court that the recoveries of empties and gun were not
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witnessed by independent witnesses of the locality and as such the same cannot be considered against the accused respondent is also not correct. It has been held in a number of cases that strict compliance of Section 103, Cr.P.C., is not necessary in case of recoveries of seizure memos. Made by the police. Similarly, mere relationship of the witnesses of the recovery memos. Is not a ground to reject their testimony dubbing the same as doubtful. A reference may be made to the following authorities in support of the view:--- In a case reported as State v. Abrar Hussain Shah [PLJ 1990 Cr.0 (AJK Shariat Court) 494], it was held that if recoveries are made at the instance of accused person there is no rule that such a recovery must be made according to the provisions contained in Section 103, C r. P.C. In a case reported as Qillandar Shah v. Azad J&K Government [PLD 1957 Azad J&K 1], it was held that the word 'locality' used in Section 103, Cr.P.C., is not to be strictly construed. And a person residing few miles away from the place of recovery would be deemed to be a person of locality within the meaning of Section 103, Cr.P.C. In a case reported as Abrar Hussars Shah v. The State [PLD 1992 SC (AJ&K) 20], it was held that recovery made at the instance of an accused person is not governed by the provisions contained in Section 103, Cr.P.C. The said provisions pertain to the such made by a police officer under Chapter VII of Cr.P.C. And not to a recovery made by a police officer at the instance of an accused person. 12. The Shariat Court was also not correct in holding that as Dr. Muhammad Akram Chaudhry has mentioned in the post-mortem report that he has also recovered a 'bullet' from the dead-body, the fact that injury to Fazal-ur-Rehman, deceased, was caused by 12-bore gun is doubtful. According to the statement of Dr. Muhammad Akram, the injury on the person of deceased was caused by fire-arm. He has also recovered three pellets from the dead-body of the deceased. Therefore, it cannot be said that the use of the word 'bullet' in the post-mortem report, would imply that injury to Fazal-ur-Rehman, deceased, was not caused by gun fire but by rifle or pistol. It may be observed here that some cartridges contains small pellets as well as large pellets like those used in 'LG' cartridge. Therefore, it is possible that large pellet was described by medical officer as 'bullet' in his report because there is no difference between the two. Thus, it cannot be inferred from the report prepared by Dr. Muhammad Akram that the injury which caused death of Fazal-ur-Rehman, deceased, was not caused by 12-bore gun but was caused by any other fire-arm like a rifle or a pistol. 13. The next question which needs resolution is as to whether the Shariat Court was justified in holding that prosecution witnesses are related to the deceased and were inimical to the accused respondents. It may be observed that except Abdul Rashid, complainant, it has not been shown that the other witnesses, namely, Muhammad Siddique and Walayat Khan were related to the deceased, irrespective of the fact that mere relationship is no ground for discarding the evidence of a witness. The suggestions made to Muhammad Siddique and Walayat Khan in cross- examination regarding their relationship show that according to the defence, they were related to the complainant party remotely; according to the suggestion the aforesaid two witnesses suppressed the names of their grandfathers in the cross-examination so as to conceal their relationship. Even if it is assumed that there was any such remote relationship, how the said witnesses would become 'interested witnesses'. An 'interested witness' is one who falsely implicates an innocent person with the commission of offence with ulterior motive. Thus, a related witness
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would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime. It may be observed that the party may rope innocent persons in a crime, alongwith a real culprit but it is not a natural that a party would lead the real culprit and instead falsely implicate innocent persons. Similarly, it has been observed by the Shariat Court that according to Dr. Muhammad Tufail, the injury on the little finger of Muhammad Siddique, P.W., was with a blunt weapon but according to the prosecution, the same was caused by gun fire. It may be observed that according to Dr. Muhammad Tufail, the aforesaid witness was twice Ex-rayed, i.e., at Bhimber and Mirpur Hospitals. Thereafter, a metal piece was taken out of the injury sustained by the said witness which clearly shows that Dr. Muhammad Tufail was not correct in mentioning in his medical report that injury to Muhammad Siddique, P.W. Was caused with blunt weapon. It is on the record that according to Muhammad Siddique, P.W., when he was firstly referred to Dr. Tufail, C.M.O., Barnala, he did not examine him and referred him to C.M.H., Mirpur because the doctor was related to the accused party. He has also given the precise relationship of Doctor with the accused party. Therefore, there was hardly any justification to hold that the prosecution story was also falsified by the medical report of Dr. Tufail. 14. The Shariat Court has also observed that some litigation between Muhammad Shafi, accused respondent, and Muhammad Siddique, P.W., had been pending in a Criminal Court which finally culminated in the conviction of Muhammad Siddique. It is stated by a witness that there was such a litigation but he was acquitted in the case on appeal much earlier. Thus, it cannot be said that the aforesaid incident was an enmity of such a degree which would necessitate corroboration of the statement of the said witness before relying upon the same. 15. So far as Walayat Khan, P.W., is concerned, the main reason for rejecting his testimony given by the Shariat Court is that he was a casual witness who lived about three miles from the place of occurrence. It may be stated that he clearly stated in his statement that on the day of occurrence, he was going to Watala to see his relatives when this incident took place. It is correct that the testimony of a chance witness should be carefully scrutinized but that does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence. However, it may be observed that in the instant case, there is also corroborative evidence in form of recoveries and medical evidence which shows that it was Abdul Ghaffar, accused respondent, who committed the murder of Fazal-ur-Rehman, deceased. 16. The contention of the learned counsel for the accused-respondents that the offence was committed at some…
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